Citation Nr: 0609268
Decision Date: 03/30/06 Archive Date: 04/07/06
DOCKET NO. 98-04 826 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to service connection for acne vulgaris as a
result of exposure to an herbicide agent.
3. Entitlement to service connection for a sebaceous cyst as
a result of exposure to an herbicide agent.
4. Entitlement to service connection for a follicular
infundibular cyst as a result of exposure to an herbicide
agent.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESSES AT HEARING ON APPEAL
The veteran and his mother
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The veteran served on active duty from April 1971 to February
1973 and from November 1976 to June 1980.
This case was previously before the Board of Veterans'
Appeals (hereinafter Board) on appeal from a November 1997
rating decision by the Department of Veterans Affairs
(hereinafter VA) Regional Office in Montgomery, Alabama,
(hereinafter RO). The case was remanded for additional
development in December 1999 and April 2004, and the case is
now ready for appellate review.
In August 1999, the veteran was afforded a hearing at the RO
before a Veterans Law Judge who has retired from the Board
and who was designated by the Chairman to conduct the hearing
pursuant to 38 U.S.C.A. § 7107(c) (West 2002). The veteran
was afforded the opportunity to attend a hearing before
another Veterans Law Judge, but indicated in a statement
received in March 2006 that he does not desire such a
hearing.
FINDINGS OF FACT
1. The veteran's active service included duty in the
Republic of Vietnam during the Vietnam War as well as service
in Germany.
2. A preponderance of the evidence is against a finding that
the veteran was involved in combat.
3. There is no independent evidence to corroborate the
stressors alleged by the veteran to have resulted in PTSD,
and there is otherwise no independent evidence confirming
that the veteran was exposed to a stressor during his service
in Vietnam or Germany that would support a diagnosis of PTSD.
4. There is no competent evidence that the veteran has a
current disability due to acne vulgaris, a sebaceous cyst or
a follicular infundibular cyst due to in-service
symptomatology or pathology, or exposure to herbicide agents
in service.
CONCLUSIONS OF LAW
1. Post-traumatic stress disorder was not incurred in or
aggravated by active military service. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. §§ 3.303, 3.304 (2005).
2. Acne vulgaris was not incurred in or aggravated by
service, and may not be presumed to have been incurred as a
result of in-service exposure to Agent Orange or other
herbicide agents. 38 U.S.C.A. §§ 1110, 1131, 1116 (West
2002); 38 C.F.R. §§ 3.102, 3.303, 3.309(e) (2005).
3. A sebaceous cyst was not incurred in or aggravated by
service, and may not be presumed to have been incurred as a
result of in-service exposure to Agent Orange or other
herbicide agents. 38 U.S.C.A. §§ 1110, 1131, 1116 (West
2002); 38 C.F.R. §§ 3.102, 3.303, 3.309(e) (2005).
4. A follicular infundibular cyst was not incurred in or
aggravated by service, and may not be presumed to have been
incurred as a result of in-service exposure to Agent Orange
or other herbicide agents during service. 38 U.S.C.A. §§
1110, 1131, 1116 (West 2002); 38 C.F.R. §§ 3.102, 3.303,
3.309(e) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim, in accordance with 38 C.F.R.
§ 3.159(b)(1). Notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
In the Mayfield case, the Court addressed the meaning of
prejudicial error (38 U.S.C.A. § 7261(b)), what burden each
party bears with regard to the Court's taking due account of
the rule of prejudicial error, and the application of
prejudicial error in the context of the duty-to-notify
(38 U.S.C.A. § 5103(a)). Considering the decisions of the
Court in Pelegrini and Mayfield, the Board finds that the
duties to notify and assist have been satisfied in this
matter, as discussed below.
Here, the Board finds that any defect with respect to the
timing of the notice requirement was harmless error.
Although the notice was provided to the veteran after the
initial adjudication, he has not been prejudiced thereby.
The content of the notice provided to the veteran fully
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only
has the veteran been provided with every opportunity to
submit evidence and argument in support of his claims and to
respond to VA notices, but the actions taken by VA have
essentially cured the error in the timing of notice.
Further, the Board finds that the purpose behind the notice
requirement has been satisfied because the veteran has been
afforded a meaningful opportunity to participate effectively
in the processing of his claims. For these reasons, it is
not prejudicial to the veteran for the Board to proceed to
finally decide this appeal.
In an April 2004 letter, the RO informed the veteran of the
provisions pertaining to VA's notice and assistance duties.
More specifically, this letter notified the veteran that VA
would make reasonable efforts to help him obtain necessary
evidence with regard to the issues on appeal but that he had
to provide enough information so that VA could request the
relevant records. VA also discussed the attempts already
made to obtain relevant evidence with regard to these claims.
Further, VA notified the veteran of his opportunity to submit
additional evidence to support his claims, as he was told to
provide any additional medical reports in his possession.
Thus, he may be considered to have been advised of his duty
to submit all pertinent evidence in his possession or notify
VA of any missing evidence.
In addition, the RO issued a detailed February 1998 statement
of the case (SOC) and October 2005 supplemental statement of
the case (SSOC), in which the veteran and his representative
were advised of all the pertinent laws and regulations. The
Board therefore believes that appropriate notice has been
given in this case. The Board notes, in addition, that a
substantial body of evidence was developed with respect to
the veteran's claims, and that the February 1998 SOC and
October 2005 SSOC issued by the RO clarified what evidence
would be required to establish entitlement to the benefits
sought. The veteran responded to the RO's communications
with additional argument, thus curing (or rendering harmless)
any previous omissions. Further, the claims file reflects
that the October 2005 SSOC contained the pertinent language
from the duty-to-assist regulation codified at 38 C.F.R.
§ 3.159 (2005). See Charles v. Principi, 16 Vet. App. 370,
373-74 (2002). Thus, to the extent that the April 2004
letter informing him of the VA's notice and assistance duties
may not have technically informed the veteran of each element
of these duties, the veteran was nonetheless properly
notified of the provisions pertaining to VA's notice and
assistance duties by the SSOC. All the above notice
documents must be read in the context of prior, relatively
contemporaneous communications from the RO. See Mayfield,
supra, at 125.
The Board concludes that the notifications received by the
veteran adequately complied with the statutory and regulatory
provisions, and interpretive authority, with respect to VA's
notice and assistance duties, and that he has not been
prejudiced in any way by the notice and assistance provided
by the RO. See Bernard v. Brown, 4 Vet. App. 384, 393-94
(1993); VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)).
Likewise, it appears that all obtainable evidence identified
by the veteran relative to his claims has been obtained and
associated with the claims file, and that neither he nor his
representative has identified any other pertinent
evidence, not already of record, which would need to be
obtained for a fair disposition of this appeal. In this
regard, extensive efforts have been undertaken to obtain
verification of stressors that the veteran alleged he
encountered during service in Vietnam and Germany, and there
is no indication that any further development in this regard
would yield positive results. Thus, for these reasons, any
failure in the timing or language of notice by the RO
constituted harmless error.
Accordingly, the Board finds that VA has satisfied its duty
to assist the veteran in apprising him as to the evidence
needed, and in obtaining evidence pertaining to his claims,
under all applicable law. The Board, therefore, finds that
no useful purpose would be served in remanding this matter
for more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court of
Appeals for Veterans Claims has held that such remands are to
be avoided. See Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc); Winters v. West, 12 Vet. App. 203 (1999)
(en banc), vacated on other grounds sub nom. Winters v.
Gober, 219 F.3d 1375 (Fed. Cir. 2000); Sabonis v. Brown, 6
Vet. App. 426, 430 (1994); Soyini v. Derwinski, 1 Vet. App.
540, 546 (1991).
In light of the Board's denial of the veteran's service-
connection claims below, no initial disability rating or
effective date will be assigned, so there can be no
possibility of any prejudice to the veteran under the holding
in Dingess/Hartman v. Nicholson, Nos. 01-1917, 02-1506, 2006
WL 519755 (U. S. Vet. App. Mar. 3, 2006). For the above
reasons, it is not prejudicial to the appellant for the Board
to proceed to finally decide the issues discussed in this
decision. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir.
2004); Quartuccio, 16 Vet. App. 183; Sutton v. Brown, 9 Vet.
App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993);
see also 38 C.F.R. § 20.1102 (2005) (harmless error).
II. Legal Criteria/Analysis
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2005).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
A. PTSD
In general, under pertinent law and VA regulations, service
connection may be granted if the evidence establishes that
the veteran's claimed disability was incurred in service. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).
Notwithstanding the lack of a diagnosis of a claimed disorder
during active duty, service connection may still be granted
if all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2002);
Cosman v. Principi, 3 Vet. App. 503, 505 (1992).
Establishing service connection for PTSD requires (1) a
current medical diagnosis of PTSD; (2) credible supporting
evidence that the claimed in-service stressor actually
occurred; and (3) medical evidence of a causal nexus between
current symptomatology and the specific claimed in-service
stressor. See 38 C.F.R. § 3.304(f); Anglin v. West, 11 Vet.
App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357
(1998), Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Suozzi
v. Brown, 10 Vet. App. 307 (1997). The diagnosis of PTSD
must comply with the criteria set forth in the Diagnostic and
Statistical Manual of Mental Disorders, 4th edition, of the
American Psychiatric Association (DSM-IV). See generally
Cohen v. Brown, supra; 38 C.F.R. § 4.125.
The evidence required to support the occurrence of an in-
service stressor for PTSD varies "depending on whether or
not the veteran was 'engaged in combat with the enemy'. . . .
Where . . . VA determines that the veteran did not engage in
combat with the enemy . . . the veteran's lay testimony, by
itself, will not be enough to establish the occurrence of the
alleged stressor." See Zarycki v. Brown, 6 Vet. App. 91, 98
(1993). The requisite additional evidence may be obtained
from sources other than the veteran's service medical
records. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996),
aff'd, 124 F.3d 228 (Fed. Cir. 1997) (table); see also
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v.
Brown, 6 Vet. App. 283 (1994); Zarycki v. Brown, supra.
The ordinary meaning of the phrase "engaged in combat with
the enemy," as used in 38 U.S.C.A. § 1154(b), requires that
a veteran have participated in events constituting an actual
fight or encounter with a military foe or hostile unit or
instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). The
Board is bound by the holding of the General Counsel opinion.
38 U.S.C.A. § 7104(c). Pursuant thereto, a PTSD claim is to
be evaluated based upon "all pertinent evidence in each
case, [with] assessment of the credibility, probative value,
and relative weight of the evidence," with "no statutory or
regulatory limitation on the types of evidence that may be
used in any case to support a finding that a veteran engaged
in combat with the enemy." Id. If the evidence establishes
that the veteran engaged in combat with the enemy and his
claimed stressor is related to that combat, in the absence of
clear and convincing evidence to the contrary, and provided
that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, his lay testimony alone may establish the occurrence
of the claimed in-service stressor.
Where a determination is made that the veteran did not engage
in combat with the enemy, or the claimed stressor is not
related to combat, the veteran's lay testimony alone will not
be enough to establish the occurrence of the alleged
stressor. See Moreau, Dizoglio, supra. In such cases, the
record must contain corroborative evidence that substantiates
or verifies the veteran's testimony or statements as to the
occurrence of the claimed stressor. See West v. Brown, 7
Vet. App. 70, 76 (1994); Zarycki v. Brown, supra.
Prior to March 7, 2002, governing regulations provided that
service connection for PTSD requires medical evidence
diagnosing the condition in accordance with § 4.125(a) of
this chapter; a link, established by medical evidence,
between current symptoms and an in-service stressor; and
credible supporting evidence that the claimed in-service
stressor occurred. If the evidence establishes that the
veteran engaged in combat with the enemy and the claimed
stressor is related to that combat, in the absence of clear
and convincing evidence to the contrary, and provided that
the claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor. If the evidence establishes
that the veteran was a prisoner-of-war under the provisions
of § 3.1(y) of this part and the claimed stressor is related
to that prisoner-of-war experience, in the absence of clear
and convincing evidence to the contrary, and provided that
the claimed stressor is consistent with the circumstances,
conditions and hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor. See 38 C.F.R. § 3.304(f)
(2001). The regulation implemented the Cohen decision, which
had held that 38 C.F.R. § 3.304(f) did not adequately reflect
the law of the governing statute, 38 U.S.C.A. § 1154(b). The
effective date of the amendment, March 7, 1997, was the date
the Cohen decision was issued by the Court.
More recently, section 3.304(f) was amended, in part to
address PTSD claims based upon personal assault upon the
veteran not involving any combat type of situation. The
regulation, as amended, now reads, in pertinent part:
Service connection for [PTSD] requires medical
evidence diagnosing the condition in accordance
with § 4.125(a) of this chapter; a link,
established by medical evidence, between current
symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service
stressor occurred. Although service connection
may be established based on other in-service
stressors, the following provisions apply for
specified in-service stressors as set forth
below:
(1) If the evidence establishes that the
veteran engaged in combat with the enemy
and the claimed stressor is related to
that combat, in the absence of clear and
convincing evidence to the contrary, and
provided that the claimed stressor is
consistent with the circumstances,
conditions, or hardships of the veteran's
service, the veteran's lay testimony
alone may establish the occurrence of the
claimed in-service stressor.
(2) If the evidence establishes that the
veteran was a prisoner-of-war under the
provisions of § 3.1(y) of this part and
the claimed stressor is related to that
prisoner-of-war experience, in the
absence of clear and convincing evidence
to the contrary, and provided that the
claimed stressor is consistent with the
circumstances, conditions, or hardships
of the veteran's service, the veteran's
lay testimony alone may establish the
occurrence of the claimed in-service
stressor.
(3) [for claims based upon in-service
personal assault in a non-combat setting,
not in issue in this case].
67 Fed. Reg. 10,330 (March 7, 2002), now codified at 38
C.F.R. § 3.304(f) (2005). The effective date of the
amendment was March 7, 2002, the date of its issuance as a
final rule.
Where a law or regulation changes after a claim has been
filed, but before the administrative appeal process has been
concluded, the Board considers both the former and the
current legal criteria. See, e.g., VAOPGCPREC 7-2003. The
effective-date rule established by 38 U.S.C.A. § 5110(g),
however, prohibits the application of any liberalizing rule
to a claim prior to the effective date of such law or
regulation. The veteran does get the benefit of having both
the old regulation and the new regulation considered for the
period after the change was made. See Kuzma v. Principi, 341
F.3d 1327 (Fed. Cir. 2003). See also VAOPGCPREC 3-2000
(April 10, 2000); 38 U.S.C.A. § 5110(g) (West 2002); 38
C.F.R. § 3.114 (2004). As the October 2005 SSOC discussed,
in substance, the amended provisions discussed above, no
prejudice will accrue to the veteran by the adjudication
below. Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
With the above criteria in mind, the facts will be briefly
summarized. The Board notes that while the record reflects
VA diagnoses of PTSD, it must find that the appellant was not
a veteran of combat. His Military Occupational Specialty
during his service in Vietnam was a clerk typist and his
military personnel and medical records do not otherwise
indicate that he participated in combat, nor are his
decorations or awards suggestive of combat status. There is
no independent evidence to confirm the stressors alleged by
the veteran despite extensive research by the U.S. Army and
Joint Services Records Research Center to verify the
stressors alleged by the veteran, said to include the
witnessing of a Vietnamese civilians, including a small girl,
being shot while under his command while on a police call and
witnessing a friend of his having his hand blown off while on
the firing range in Wiesbaden Germany. The research to
verify the alleged stressors has been hampered by the lack of
specifics from the veteran as to his alleged stressors. In
this regard, the Board notes that the duty to assist is not a
"one way street," and that when, as in the instant case, it
is the veteran that has the "information that is essential
in obtaining the putative evidence," the veteran cannot
"passively wait" for VA assistance. Wood v. Derwinski, 1
Vet. App. 190, 193 (1991).
As discussed above, in cases involving stressors for veterans
not shown to have been engaged in combat, "the veteran's lay
testimony regarding in-service stressors is insufficient,
standing alone, to establish service connection and must be
corroborated by credible evidence." Doran v. Brown, supra,
at 289. In this case, there has been no credible evidence
obtained to substantiate the veteran's claimed stressors, and
the veteran has failed to provide all the information needed
to conduct meaningful research to confirm the reported
stressors. Thus, his claim fails to satisfy one of the
essential elements in establishing service connection for
PTSD, i.e., credible evidence of an in-service stressor, as
required by 38 C.F.R. § 3.304. Thus, to the extent that the
diagnoses of PTSD of record appear to have been based upon
the veteran's unverified and uncorroborated accounts as to
his in-service experiences, these diagnoses are not
probative. See Swann, supra.
In view of the foregoing, because there is no credible
supporting evidence of any claimed in-service stressor, the
Board concludes that the preponderance of the evidence is
against the veteran's claim of entitlement to service
connection for PTSD. As a result, the claim must be denied.
Gilbert, 1 Vet. App. at 49.
B. Skin disabilities
Where there is a chronic disease shown as such in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes. 38 C.F.R. §
3.303(b). When a condition noted during service is not shown
to be chronic, or the fact of chronicity in service is not
adequately supported, then a showing of continuity of
symptomatology after discharge is required to support the
claim. Id. Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The Court has held that, in order to prevail on the issue of
service connection, there must be medical evidence of: (1) a
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet. App.
247, 253 (1999).
It is clear that "[t]he regulations regarding service
connection do not require that a veteran must establish
service connection through medical records alone."
Triplette v. Principi, 4 Vet. App. 45, 49 (1993), citing
Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). It is
equally clear, however, that the resolution of issues which
involve medical knowledge, such as diagnosis of disability
and determination of medical etiology, require professional
evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992). See also Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge"), aff'd sub nom. Routen
v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S.
Ct. 404 (1998).
The veteran contends, including by way of sworn testimony and
written argument, that that he developed the skin disorders
for which service connection is claimed as a result of
exposure to Agent Orange during his service in Vietnam. VA
regulations provide that, if a veteran was exposed to an
herbicide agent during active service, presumptive service
connection is warranted for the following disorders:
chloracne or other acneform disease consistent with
chloracne; Type II diabetes, Hodgkin's disease; multiple
myeloma; Non- Hodgkin's lymphoma; acute and subacute
peripheral neuropathy; porphyria cutanea tarda; prostate
cancer; respiratory cancers (cancer of the lung, bronchus,
larynx, or trachea); and, soft-tissue sarcoma (other than
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or
mesothelioma). Presumptive service connection for these
disorders as a result of Agent Orange exposure is warranted
if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38
U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The governing law
provides that a "veteran who, during active military, naval,
or air service, served in the Republic of Vietnam during the
period beginning on January 9, 1962, and ending on May 7,
1975 shall be presumed to have been exposed during such
service to an herbicide agent . . . unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service." 38 U.S.C.A. §
1116(f).
Review of the veteran's DD Form 214 confirms that the veteran
served in the Republic of Vietnam during the Vietnam era.
Because the veteran served in Vietnam during the appropriate
period of time, he is presumed to have been exposed to Agent
Orange or other herbicide agents during that period of
service. However, chloracne has not been diagnosed, and the
skin disabilities for which service connection has been
claimed are not included in the conditions presumed to be the
result of exposure to Agent Orange, as listed above. 38
U.S.C.A. § 1116(a); 38 C.F.R. § 3.309(e).
With regard to the assertions of the veteran that he
currently has a skin disorder that is the result of exposure
to Agent Orange during service, the veteran is not deemed
competent to present evidence as to diagnosis, medical
etiology, or causation. See Routen v. Brown, 10 Vet. App.
183, 186 (1997) ("a layperson is generally not capable of
opining on matters requiring medical knowledge", aff'd sub
nom. Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998), cert.
denied, 119 S.Ct. 404 (1998). See also Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Therefore, and given the
negative evidence summarized above, the Board finds that the
probative weight of the negative evidence exceeds that of the
positive. Therefore, entitlement to service connection for
the claimed skin disorders on a presumptive basis as due to
exposure to Agent Orange must be denied. Gilbert, 1 Vet.
App. at 49.
While the appeal appears to be limited to the contention that
service connection for the claimed skin disorders is
warranted on a presumptive basis as due to exposure to Agent
Orange, the Board has considered whether the claims can be
granted under the general legal provisions pertaining to
direct service connection. See Combee v. Brown, 34 F.3d
1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40,
44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed.
Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). See Brock
v. Brown, 10 Vet. App. 155, 160-61 (1997). In this regard,
the service medical records, including the April 1980
separation examination, do not reflect any evidence of a skin
disorder. While VA clinical records reflect treatment for
skin disabilities from 1992, to include subcutaneous,
sebaceous, and follicular infundibular cysts, there is no
competent medical evidence linking any skin disability
identified at these examinations, conducted over 10 years
after the veteran's separation from service, to any
symptomatology or pathology in service. Given the above
evidence, the Board concludes that the negative evidence
exceeds the positive, and the claims for service connection
for the claimed skin disorders must also be denied under the
general service connection provisions. Gilbert, supra.
ORDER
Entitlement to service connection for PTSD is denied.
Entitlement to service connection for acne vulgaris as a
result of exposure to an herbicide agent is denied.
Entitlement to service connection for a sebaceous cyst as a
result of exposure to an herbicide agent is denied.
Entitlement to service connection for a follicular
infundibular cyst as a result of exposure to an herbicide
agent is denied.
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs